October 2, 2018

The Marrakesh Treaty was agreed by the World Intellectual Property Office in 2013.  The Treaty aims to improve visually impaired and print disabled people’s access to copyright works around the world by requiring its signatories to provide exceptions to copyright allowing the making of accessible format copies and the transfer of such copies across borders.

The European Union published the Marrakesh Directive (2017/1564/EU) together with a related Regulation (2017/1563/EU) to implement the Treaty in 2017.  The Regulation, which governs the status of cross-border exchanges of accessible copies of works between EU Member States and countries outside the EU that are signatories to the Marrakesh Treaty, will apply in the UK from 12 October 2018.

Following a consultation on implementation of the Directive, the Government has now made the Copyright and Related Rights (Marrakesh Treaty etc) (Amendment) Regulations 2018, which amend the Copyright, Designs and Patents Act 1988 and the Copyright and Rights in Databases Regulations 1997 to bring UK law into line with the Directive.

The UK in fact already provides exceptions to copyright for disabled people in the CDPA.  They apply to all types of copyright works and all types of disability that prevent access to copyright works.  The Directive sets out a minimum standard for the exceptions.  Changes to the current UK exceptions are required to ensure UK law is compliant with EU law.

The 2018 Regulations make changes to the exceptions in the CDPA to cover all forms of disability that prevent a person accessing a copyright work, and all types of work, rather than just those specified in the Directive.

The current UK exceptions only apply to situations where copies of works in the particular accessible format cannot be obtained under reasonable commercial terms by, or with the authority of, the copyright owner.  In other words, the exceptions cannot currently be relied upon if a commercial accessible format copy of a work is available.  The Regulations remove these restrictions as required by the Directive.

Under the Directive, organisations that are allowed to make accessible copies of books and similar works to disabled and visually impaired people are called “authorised entities”.  The UK in fact already has a similar exception relating to “authorised bodies”, and many of the obligations set out in the Directive are already present in the CDPA.  However, for consistency, the new Regulations transpose the obligations on authorised entities directly from the Directive into the CDPA.

The Directive also outlines permitted acts allowed by the exceptions, which are different to the permitted acts for the current UK disability exceptions.  The 2018 Regulations therefore amend the CDPA to align it with the Directive.

The exceptions to copyright under the Directive apply not only to copyright and related rights, but also to the sui generis database right under the Database Directive (96/9/EC).  Database rights are not covered by existing disability exceptions in UK law.  The 2018 Regulations therefore extend the exception to cover this right.

The 2018 Regulations come into force on 11 October 2018.  To access the 2018 Regulations, click here.